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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Court of Appeals of New Mexico Filed 1/27/2025 9:20 AM
Filing Date: January 27, 2025
Ramon i. Maestes Chief Clerk
No. A-1-CA-40770
MARC GRANO, as Personal Representative of the ESTATE OF CYNTHIA CATON; HARRY CATON; SEAN CATON; and AARON CATON,
Plaintiffs-Appellants,
V.
11 12
JULIA KEATING, M.D. and DR. JEFFREY HEBERT,
Defendants-Appellees,
13 14 and
PRIMARY CARE OF NEW MEXICO, LLC; HEALTHCARE RESOURCES, LLC; QUALITY HEALTH MANAGEMENT, LLC; QHM, LLC; QUALITY HEALTH MANAGEMENT,
15 16 17 18 19 20 21 22 23 24 25 26 27 28
LLC (FL); LOVELACE HEALTH SYSTEMS, INC .; ARDENT HEALTH PARTNERS, LLC d/b/a ARDENT HEALTH SERVICES; ARDENT LEGACY HOLDINGS, INC .; ARDENT LEGACY ACQUISITIONS, INC .; AHS LEGACY OPERATIONS, LLC; AHS MANAGEMENT COMPANY, INC .; AHS NEW MEXICO HOLDINGS, INC .; and ZIA DIAGNOSTIC IMAGING, LLC,
Defendants.
2 3 4 5 6 7 8 9 10
1

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY ABIGAIL ARAGON, District Court Judge
Law Office of James H. Wood, P.C. Zacary E. Wilson-Fetrow James H. Wood Albuquerque, NM
1 2 3 4 5 6 for Appellants 8 7 Hinkle Shanor LLP Kathleen Wilson Hari-Amrit Khalsa Albuquerque, NM 9 10 11 12 13 14 15 16 17 for Appellee Dr. Jeffery Hebert
for Appellee Julia Keating, M.D.
Lewis Brisbois Bisgaard & Smith Karie J. Valentino Julia H. Purdy Albuquerque, NM

OPINION

IVES, Judge.

3} The statute of repose in the Medical Malpractice Act (MMA), NMSA 1978,
§§ 41-5-1 to -29 (1976, as amended through 2023),' generally requires a plaintiff to
bring a “claim for malpractice . . . against a health care provider . . . within three
years after the date that the act of malpractice occurred” or that claim is time-barred.
Section 41-5-13. However, our Supreme Court has recognized that due process
requires an exception to this general rule—an exception that extends the time to file
claims that accrue late in the repose period. Cahn v. Berryman, 2018-NMSC-002,
q§] 16, 20-21, 408 P.3d 1012; see N.M. Const. art. II, § 18; U.S. Const. amend. XIV,

§ 1. In this case, the district court applied the general rule and declined to apply the

'In this opinion all references to the MMA are to the current version of the
Act. This appeal requires us to apply Sections 41-5-3, 41-5-5, and 41-5-13 of the
MMA. Although the Legislature made various amendments to the MMA after the
filing of this lawsuit, including to these three sections, those amendments do not
change how the relevant sections apply to the facts and arguments before us.
Compare § 41-5-3(C) (1977) (defining “malpractice claim’’), with 2021 N.M. Laws,
ch. 16, § 1 (adding various definitions, and changing the applicable subsection of
“malpractice claim” without changing its definition of the term), and 2021 N.M.
Laws, 2nd Spec. Sess., ch. 5, § 1 (same), and 2023 N.M. Laws, ch. 207, § 1 (same).
Compare § 41-5-5 (1992) (outlining the requirements necessary to qualify for the
benefits of the MMA), with 2021 N.M. Laws, ch. 16, § 2 (altering the necessary
requirements for MMA benefits), and 2023 N.M. Laws, ch. 207, § 2 (same).
Compare § 41-5-13 (1976) (creating a three-year repose period for all malpractice
claims, but providing an exception for minors), with 2021 N.M. Laws, ch. 16, § 6
(amending the repose period for malpractice claims brought by minors, but leaving
unamended the repose period for other malpractice claims).

exception. The court therefore dismissed as time-barred claims for personal injury
resulting in wrongful death filed by Plaintiff Marc Grano, as personal representative
of the wrongful death estate (the Estate) of Decedent Cynthia Caton, and claims for
loss of consortium filed by Plaintiffs Harry Caton, who is Decedent’s husband, and
Sean Caton and Aaron Caton, who are Decedent’s sons (collectively, the Family),
against Drs. Julia Keating and Jeffrey Hebert (collectively, the Doctors). This appeal
involves four timeliness questions that arise because the district court concluded that
the Doctors’ last acts of alleged malpractice occurred three years before Decedent
died; it is undisputed that Decedent discovered the alleged malpractice over two
years before she died; and it is undisputed that Plaintiffs did not file their claims
against the Doctors until more than three years after Decedent discovered the alleged
malpractice.

23 The first question is one of first impression in New Mexico: whether the
district court correctly determined that the MMA’s statute of repose applies to the
Family’s loss of consortium claims, or whether the Family is correct that the statute
does not apply to these claims because Decedent’s family members were not patients
of the Doctors. We agree with the district court that these claims, which are premised
on allegations of negligent medical care, are subject to the MMA’s statute of repose.
433. The second question is whether the district court erred by concluding that

Plaintiffs failed to rebut Dr. Keating’s prima facie case about when her last act of

alleged malpractice occurred. We conclude that the district court did not err, and we
therefore hold that the wrongful death and loss of consortium claims against Dr.
Keating, like their claims against Dr. Hebert, were filed beyond the three-year
statutory limit set forth in the MMA.

4 This holding brings us to the third and fourth questions, both of which are
issues of first impression pertinent to whether the due process exception for late-
accruing claims allowed Plaintiffs more time to bring their claims. The third question
is whether the district court is correct that the MMA applies when determining the
time of accrual of claims for wrongful death predicated on allegations of negligent
medical care, or whether the Estate 1s correct that the applicable statute is the
Wrongful Death Act (WDA), NMSA 1978, §§ 41-2-1 to -4 (1882, as amended
through 2001). We agree with the district court. We hold that the Estate’s wrongful
death claims accrued when Decedent discovered the alleged acts of malpractice, not
when Decedent died. Because those claims did not accrue in the final year of the
repose period, we hold that the due process exception does not apply, and we affirm
the district court’s ruling that the claims are time-barred.

5} The fourth question is whether the district court is correct that the Family’s
loss of consortium claims accrued when Decedent discovered the act of alleged
malpractice, or instead whether those claims accrued when the family members who

brought those claims knew or should have known of their injuries and the cause of

their injuries. We hold that accrual is determined based on the latter test. Because
the district court relied on an erroneous legal conclusion to grant summary judgment
against the Family on their loss of consortium claims, we reverse and remand for
further proceedings on those claims consistent with this opinion.

BACKGROUND

I. Factual History

{6} | The relevant facts are undisputed. Dr. Keating was Decedent’s primary care
provider from 2007 to 2015. In the spring of 2015, Decedent saw Dr. Keating for a
mass in her breast, after which Dr. Keating ordered a mammogram and a CT scan.
Dr. Hebert, a radiologist, analyzed the scan. Believing the mass to be a post-
traumatic abnormality, Dr. Hebert suggested a follow up CT scan six months later
and advised that it was unnecessary to perform a biopsy. On November 9, 2015,
another CT scan was done, which Dr. Hebert also analyzed and compared to the scan
from the spring. Although the lump had grown, he reaffirmed his conclusion from
the spring and advised that further sampling was unnecessary. On December 3, 2015,
Dr. Keating discussed the results with Decedent. Dr. Keating suggested further
discussion of the results during Decedent’s annual checkup, which was scheduled
for mid-January 2016.

{% Inearly January, Decedent canceled the checkup, and on March 11, 2016, she

had her first visit with a new primary care physician, who subsequently ordered CT

scans, and a biopsy of the mass was ordered by another physician. The results
showed the mass had grown since the second CT scan. The mass was surgically
removed and diagnosed as cancerous on July 12, 2016. Over two years later, on
September 7, 2018, Decedent passed away. Her death was caused by the cancer.

II. Procedural History

33 On February 8, 2019, Plaintiffs filed a complaint against Dr. Keating that
included claims by the Estate for personal injury resulting in wrongful death and
claims by the Family for loss of consortium. On June 20, 2019, Plaintiffs amended
the complaint to bring substantially similar claims against Dr. Hebert. To support
both the wrongful death and loss of consortium claims, Plaintiffs presented several
legal theories, including two relevant to the issues on appeal: the Doctors negligently
provided medical treatment to Decedent, and they negligently set up various systems
of communication with, treatment for, and caring of patients.

(93 Drs. Keating and Hebert filed separate motions for summary judgment
arguing that the wrongful death and loss of consortium claims were filed too late

under the MMA’s statute of repose.” Dr. Keating asserted that the latest possible date

*Dr. Keating filed additional summary judgment motions on grounds
unrelated to the questions presented in this appeal. Specifically, she challenged the
merits of the loss of consortium claims brought by Decedent’s sons, as well as the
viability of two of the theories supporting the Estate’s wrongful death claim (breach
of fiduciary duty and unfair trade practices). The district court granted these motions.
Because Plaintiffs did not appeal these rulings, they are final, and our subsequent

she could have committed malpractice under Plaintiffs’ alleged facts was December
3, 2015, the last date she treated Decedent; and therefore the three-year repose period
for the claims against her expired December 3, 2018, a few months before Plaintiffs
filed suit against her on February 8, 2019. Plaintiffs responded that the repose period
actually began on March 11, 2016, when Decedent had her first visit with a new
doctor and had her records forwarded to that doctor. In the alternative, they argued
that even if the repose period ended on December 3, 2018, as Dr. Keating asserted,
the due process exception allowed them additional time to file their complaint
because their claims accrued when Decedent died, which was less than a year before
the claims against the Doctors were filed.

4103 Dr. Hebert’s untimeliness argument was similar to Dr. Keating’s. He
contended that his last act of alleged malpractice was his report on November 9,
2015, that the three-year period ended on November 9, 2018, and that Plaintiffs did
not name him as a defendant until June 20, 2019. In response to Dr. Hebert’s motion,
Plaintiffs did not dispute the date of the last act of alleged malpractice; they relied
exclusively on the due process exception.

413 The district court agreed with the Doctors on all of the issues raised and

dismissed all of Plaintiffs’ claims against the Doctors. Plaintiffs appeal.

references to Decedent’s sons’ loss of consortium claims are only to their claims
against Dr. Hebert.

DISCUSSION

4123 We review orders granting summary judgment de novo. Zamora v. St. Vincent
Hosp., 2014-NMSC-035, 9, 335 P.3d 1243. “Summary judgment is appropriate in
the absence of any genuine issues of material fact and where the movant is entitled
to judgment as a matter of law.” /d.; accord Rule 1-056(C) NMRA. “[W]e examine
the whole record on review, considering the facts in a light most favorable to the
nonmoving party and drawing all reasonable inferences in support of a trial on the
merits.” Zamora, 2014-NMSC-035, § 9. When the appropriateness of summary
judgment hinges on a legal question, including statutory interpretation, our review
is de novo. See Wilson v. Denver, 1998-NMSC-016, § 13, 125 N.M. 308, 961 P.2d
153.

413} Plaintiffs present four challenges to the summary judgment orders. First, the
Family argues that the MMA’s statute of repose does not apply to their loss of
consortium claims because they were not the Doctors’ patients. Second, Plaintiffs
contend that summary judgment was inappropriate as to their wrongful death and
loss of consortium claims against Dr. Keating because, although she made a prima
facie case that the last act of malpractice alleged against her occurred on December
3, 2015, Plaintiffs rebutted that case with evidence that Dr. Keating had an ongoing
duty to revisit and correct her diagnosis of Decedent until she began treatment with

a new primary care doctor on March 11, 2016. As a consequence, according to

Plaintiffs, their claims against Dr. Keating are timely even if the due process
exception for late-accruing claims does not apply. Third, the Estate argues that—
even if the wrongful death claims were filed after the repose periods ended—the due
process exception for late-accruing claims applies because the WDA, rather than the
MMA, governs the accrual of the wrongful death claims, and those claims therefore
did not accrue until Decedent died. Fourth, the Family argues that—even if they filed
their loss of consortium claims after the repose periods ended—the due process
exception applies because those claims accrued when Decedent died, which was late

in the repose periods.°

3We decline to address the merits of Plaintiffs’ arguments that Dr. Keating
waived her statute of repose defense by waiting for over two years to raise it and that
the doctrine of laches barred her from asserting the statute of repose defense.
Plaintiffs have not adequately developed their waiver argument. See Rule 12-
318(A)(4) NMRA. Contrary to Rule 12-318(A)(4), Plaintiffs fail to address New
Mexico precedent on waiver generally and waiver of defenses specifically. Cf
Garcia v. Marquez, 1984-NMSC-074, § 22, 101 N.M. 427, 684 P.2d 513 (discussing
waiver generally); Chavez v. Kitsch, 1962-NMSC-122, 9§ 7-13, 70 N.M. 439, 374
P.2d 497 (holding a statute of limitations defense was waived without properly
pleading it); Hagen v. Faherty, 2003-NMCA-060, 9§ 10-20, 133 N.M. 605, 66 P.3d
974 (estopping a party from asserting a properly pled statute of limitations defense);
Trei v. AMTX Hotel Corp., 2014-NMCA-104, 9§ 14-17, 336 P.3d 393 (discussing
whether the defendant waived their personal jurisdiction defense based on the
defendant’s subsequent actions in the litigation). Plaintiffs rely only on authority
from other jurisdictions, but they do not explain why we should conclude that the
approaches taken by those jurisdictions are consistent with New Mexico law. We
will not develop an argument for them. See Elane Photography, LLC v. Willock,
2013-NMSC-040, § 70, 309 P.3d 53 (recognizing that appellate courts should not
develop arguments for parties because to do so would “create[] a strain on judicial
resources and a substantial risk of error”). As for Plaintiffs’ laches argument, they
did not preserve it, and we therefore do not consider it. See Rule 12-321 NMRA.

17
18

414} We address each argument separately in the discussion sections that follow.
In summary, as to the first argument, we hold that the Family’s loss of consortium
claims are subject to the MMA’s statute of repose—yust like the Estate’s wrongful
death claims—because their claims are predicated on the Doctors’ allegedly
negligent medical care. As to the second argument, we hold that Plaintiffs failed to
rebut Dr. Keating’s prima facie case, and therefore that Plaintiffs’ claims against Dr.
Keating, like their claims against Dr. Hebert, were filed beyond the three-year
statutory limit. As to the third argument, we hold that the Estate’s wrongful death
claims accrued when Decedent first learned of her misdiagnosis, which was during
the first year of the repose period, and that the due process exception therefore does
not apply. As to the fourth argument, we hold that the district court erred by
concluding that the Family’s loss of consortium claims accrued when Decedent
learned of her injury and by granting summary judgment as to the applicability of
the due process exception on that basis. Instead, each of those claims accrued when
the Family member bringing the claim learned of their injury and its cause.

The MMA’s Repose Periods

I. The MMA’s Statute of Repose Applies to Plaintiffs’ Loss of Consortium
and Wrongful Death Claims

45} The district court determined that Plaintiffs’ wrongful death and loss of
consortium claims are subject the MMA’s statute of repose, which applies to

“claim[s] for malpractice . . . against a health care provider.” Section 41-5-13; see

Cahn, 2018-NMSC-002, J 15 (characterizing Section 41-5-13 as a statute of repose).
New Mexico law is clear that wrongful death claims based on allegations of medical
malpractice are governed by the MMA’s statute of repose. See § 41-5-3(1) (defining
“malpractice claim,” in pertinent part, as “any cause of action arising in this state
against a health care provider for medical treatment, lack of medical treatment or
other claimed departure from accepted standards of health care that proximately
results in injury to the patient, whether the patient’s claim or cause of action sounds
in tort or contract, and includes but is not limited to actions based on battery or
wrongful death” (emphasis added)); Armijo v. Tandysh, 1981-NMCA-098, ¥ 6,
98 N.M. 181, 646 P.2d 1245, overruled on other grounds by Roberts v. Sw. Cmty.
Health Servs., 1992-NMSC-042, ¢¥ 9-19, 114 N.M. 248, 837 P.2d 442. The Estate
does not challenge this established law. However, the Family argues that the MMA’s
statute of repose “does not apply” to their loss of consortium claims because they
were not patients of either Dr. Keating or Dr. Hebert. We disagree.*

{16 Contrary to the Family’s argument, whether a claim is a medical malpractice

claim and is therefore governed by the MMA depends on whether the claim is

4 Although this Court applied the MMA’s statute of repose to loss of
consortium claims brought by the parents of a child based on allegations of medical
malpractice in Garrity v. Driskill, 2022-NMCA-054, 9 2-3, 6, 517 P.3d 928, the
applicability of the statute of repose was not a disputed question in Garrity, and it
therefore does not resolve the question presented in this case. See Britton v. Off. of
the Att’y Gen., 2019-NMCA-002, 4 24, 433 P.3d 320 (recognizing that cases are not
authority for propositions not considered).

predicated on an allegation of professional negligence by a health care practitioner,
not on whether the claim is brought by the patient or a nonpatient. The MMA defines
“malpractice claim,” in relevant part, as “any cause of action arising in this state
against a health care provider for medical treatment, lack of medical treatment or
other claimed departure from accepted standards of health care that proximately
results in injury to the patient.” Section 41-5-3(1). Applying this definition, this
Court has held that a claim is for malpractice if its “gravamen . . . is predicated upon
the allegation of professional negligence.” Christus St. Vincent Reg’l Med. Ctr. v.
Duarte-Afara, 2011-NMCA-112, 7 18, 267 P.3d 70. The Family’s claims satisfy that
test. To support the loss of consortium claims, the Family alleges in their complaint
that the Doctors engaged in “wrongful conduct,” that this conduct was performed in
the Doctors’ professional capacity, and that it amounted to “negligent... care and
treatment of [Decedent].” It makes no difference that the claims were brought by the
Family, rather than Decedent. Our Supreme Court has concluded that, although the
text of the statutory definition could be read to include only claims made by patients,
“the [Legislature] intended to cover all causes of action arising in New Mexico that
are based on acts of malpractice,” including claims brought by nonpatients.
Wilschinsky v. Medina, 1989-NMSC-047, §§ 20-26, 108 N.M. 511, 775 P.2d 713;
see also Duarte-Afara, 2011-NMCA-112, 9 15-20 (applying the MMA’s statute of

repose to a medical center’s claim for equitable indemnification against doctors

because it was predicated on the theory that the doctors engaged in malpractice). We
therefore hold that the Family’s loss of consortium claims are malpractice claims
and that, because the Doctors are qualified health care providers,° the claims are
subject to the MMA’s statute of repose.

I. Plaintiffs Filed Their Wrongful Death and Loss of Consortium Claims
More Than Three Years After the Last Acts of Alleged Malpractice

173, The statute of repose in the MMA sets a three-year time limit to bring
malpractice claims against health care providers. See § 41-5-13. Timeliness is
determined by the “occurrence rule,” under which the time to file a claim “runs from
a Statutorily determined triggering event,” which is the “act of malpractice.”
Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, {| 50, 53, 121 N.M.
821, 918 P.2d 1321; accord § 41-5-13. The clock starts at the last act of malpractice,
“even though the patient may be oblivious of any harm.” Cummings, 1996-NMSC-
035, 4 47. The MMA does not define “act of malpractice,” see § 41-5-3 (defining
terms in the MMA), but this Court has defined “malpractice” as “an instance of
negligence or incompetence on the part of a health care provider.” Chavez v.
Delgado, 2014-NMCA-014, 4 11, 316 P.3d 907 (alterations, internal quotation

marks, and citation omitted).

*Plaintiffs do not challenge the district court’s determination that the Doctors
are “qualified health care providers.” See § 41-5-5 (outlining the qualifications
necessary to benefit from the provisions of the MMA).

418; In this case, Plaintiffs do not dispute that Dr. Keating established a prima facie
case that December 3, 2015, was the last possible act of alleged malpractice that
could trigger her repose period for both the wrongful death and loss of consortium
claims. See Hernandez v. Reuter, 2023-NMCA-007, § 20, 523 P.3d 614 (stating that
we first review whether the movant for summary judgment established a prima facie
case). Plaintiffs’ argument is that they rebutted Dr. Keating’s prima facie case by
establishing that she committed a continuing tort by failing to reconsider her
diagnosis between December 3, 2015, when Decedent had her last appointment with
Dr. Keating, and March 11, 2016, when Decedent began receiving treatment from a
new health care provider. We disagree because Plaintiffs failed to carry their burden
of presenting “specific evidentiary facts,” see Freeman v. Fairchild, 2018-NMSC-
023, { 16, 416 P.3d 264 (internal quotation marks and citation omitted), that the
standard of care required Dr. Keating to reconsider her diagnosis of Decedent at any
point after December 3, 2015. See Juarez v. Nelson, 2003-NMCA-011, § 15, 133
N.M. 168, 61 P.3d 877 (concluding that because it was undisputed that the doctor

and patient did not see each other during the period in question, the plaintiffs

°Dr. Keating argues that, instead of a continuing tort, Plaintiffs implicitly
invoke the continuous treatment doctrine, which does not toll the statutory period.
To the extent that Plaintiffs rely on the continuous treatment doctrine, we agree with
Dr. Keating that the doctrine did not afford Plaintiffs additional time to bring their
claims. See Juarez v. Nelson, 2003-NMCA-011, 9§ 11, 13, 133 N.M. 168, 61 P.3d
877, overruled on other grounds by Tomlinson v. George, 2005-NMSC-020, § 18,
138 N.M. 34, 116 P.3d 105.

continuing tort theory depended on whether the standard of care required the doctor
to revisit his diagnosis during that time), overruled on other grounds by Tomlinson
v. George, 2005-NMSC-020, 9 18, 138 N.M. 34, 116 P.3d 105. When, as in this
case, the act of alleged malpractice “involves the use of specialized knowledge or
skill to make a judgment call as to the appropriate thing to do or not do,” expert
testimony is generally required to establish the applicable standard of care. Richter
v. Presbyterian Healthcare Servs., 2014-NMCA-056, § 22, 326 P.3d 50; accord UJI
13-1101 NMRA. Plaintiffs argue their expert established as much. We disagree.
Plaintiffs point us to their expert’s opinion that “[t]he standard of care required Dr.
Keating to correct any of the .. . deficiencies [that the expert identified] up until
[Decedent] established care with a new provider” on March 11, 2016. Critically,
none of the alleged deficiencies identified by Plaintiffs’ expert were that Dr. Keating
failed to reconsider her diagnosis of Decedent after December 3, 2015. The alleged
deficiencies were instead that Dr. Keating insufficiently obtained and followed up
on Decedent’s medical history; did not follow up on or improperly requested a
follow up exam at various times in the spring and summer of 2015; failed to refer
Decedent to a surgeon or radiologist after Decedent’s various tests; and requested
the wrong type of mammogram. Because we do not believe Plaintiffs’ expert’s
opinions establish the standard of care that Plaintiffs seek to impose on Dr. Keating,

we conclude that Plaintiffs failed to rebut Dr. Keating’s prima facie case. See Juarez,

2003-NMCA-011, § 15 (affirming an order granting summary judgment because
“Ithe pjlaintiffs did not come forward with any evidence . . . as to whether the
applicable standard of care imposed on [the defendant doctor] a duty to reconsider
his decision to treat [the patient] himself or to rethink his diagnosis between [the
period of time at issue in that case]’’).

419} We therefore hold that the district court did not err by concluding that
Plaintiffs filed their claims against Dr. Keating outside of the repose period. The
clock began ticking on December 3, 2015, and it expired three years later on
December 3, 2018. See § 41-5-13. But Plaintiffs did not file their claims against Dr.
Keating until February 8, 2019. Because all of Plaintiffs’ claims against the Doctors
were filed outside of the repose periods,’ we must next determine whether the district
court erred by concluding—based on the record before it—that the due process
exception does not apply to the wrongful death and loss of consortium claims
because those claims did not accrue during the last year of the repose period.

The Due Process Exception

20} The due process exception only applies to claims that accrue in the final

twelve months of the repose period. Cahn, 2018-NMSC-002, 9§ 16, 20-21. Unlike

7Plaintiffs do not challenge the district court’s determination that the last act
of alleged malpractice by Dr. Hebert occurred on November 9, 2015; that the three-
year repose period ended November 9, 2018; and that they did not sue Dr. Hebert
until June 20, 2019.

the analysis for the statute of repose’s general rule, which hinges on when the last
act of malpractice occurred, see Cummings, 1996-NMSC-035, 9] 50-53, the analysis
for the due process exception hinges on when the claim accrued. Cahn, 2018-
NMSC-002, 4 16. A claim accrues once “the plaintiff knows or with reasonable
diligence should have known of the injury and its cause.” Roberts, 1992-NMSC-
042, 927; accord Maestas v. Zager, 2007-NMSC-003, § 22, 141 N.M. 154, 152 P.3d
141.

13 Plaintiffs argue that the due process exception affords them an additional year
to bring their wrongful death and loss of consortium claims against the Doctors
because all of these claims accrued when Decedent died on September 7, 2018,
which was late in the repose period for each of the Doctors. The Doctors argue that
all of Plaintiffs’ claims accrued when Decedent discovered her potential malpractice
claim on July 12, 2016, which was not in the final year of the repose period, and that
the due process exception therefore does not apply.

2} We hold that the district court did not err by entering summary judgment on
the Estate’s claims for wrongful death based on medical malpractice, which accrued
when Decedent discovered her injury—that is, when she discovered the potential
malpractice on July 12, 2016. However, we hold that the district court erred by
entering summary judgment on the Family’s claims for loss of consortium because

the district court did so based on the erroneous legal conclusion that these claims

accrued when Decedent discovered her injury; instead, each loss of consortium claim
accrued when the Plaintiff bringing that claim learned of his injury and of its cause.
We discuss the wrongful death claims and the loss of consortium claims in turn.
Ill. The Due Process Exception Does Not Apply to the Wrongful Death
Claims Because They Accrued When Decedent Discovered the
Malpractice, Which Was Not Late in the Repose Periods
3} Plaintiffs argue that the Estate’s wrongful death claim accrued when Decedent
died. Plaintiffs contend that the accrual date should be determined based on a
provision in Section 41-2-2 of the WDA: “The cause of action [under the WDA]
accrues as of the date of death.” We disagree because the MMA, rather than the
WDA, applies, and the Estate’s claim therefore accrued when Decedent was
diagnosed with cancer.
4; The fundamental problem with Plaintiffs’ position is that this Court has
already held that the timeliness of wrongful death claims based on allegations of
medical malpractice is not governed by the WDA. See Armijo, 1981-NMCA-098,
46; Mackey v. Burke, 1984-NMCA-028, 4 2, 23, 102 N.M. 294, 694 P.2d 1359,
overruled on other grounds by Chavez v. Regents of Univ. of N.M., 1985-NMSC-
114, 9§ 4-5, 103 N.M. 606, 711 P.2d 883. Instead, the MMA’s statute of repose,

Section 41-5-13, applies. See § 41-5-3(1) (defining malpractice claim to include,

among other things, “actions based on... wrongful death’); Armijo, 1981-NMCA-

098, 7 6 (same). We therefore look to MMA precedent for guidance about when the
Estate’s wrongful death claim accrued.

5} Although precedent does not specifically address this question, it establishes
key concepts that point to our answer. Precedent establishes the “discovery rule,”
Cummings, 1996-NMSC-035, § 47, which provides that a patient’s medical
malpractice claim accrues when “the plaintiff discovers that [they] ha[ve] suffered
malpractice.” Cahn, 2018-NMSC-002, 4 21; see Tomlinson, 2005-NMSC-020, § 10
(explaining that the accrual date was the day the plaintiff “was aware of a potential
claim for malpractice against” the defendant). A patient’s claim accrues when they
first become “subjective[ly] aware[] that something 1s wrong’”—their “first feelings
of pain or discomfort”—or when they get their “first objective confirmation” of
potential malpractice “through medical diagnosis that previous medical care was
improper.” Cummings, 1996-NMSC-035, 4 47. Precedent recognizes a related point
that is critically important here. The injury need not be complete or fully developed
for the claim to accrue; the claim accrues once the patient discovers some
demonstrable “harm or increased risk” sufficient to support their malpractice claim.
See id. § 58. Under the discovery rule, what matters is the fact of the injury, not the
extent of the injury. Cf Maestas, 2007-NMSC-003, 4 22 (applying the discovery
rule in the context of the Tort Claims Act and stating that “‘a cause of action brought

under [the Tort Claims Act] will accrue regardless of whether or not the plaintiff is

aware of the full extent of [their] injury”); Martinez-Sandoval v. Kirsch, 1994-
NMCA-115, {9 3, 26, 118 N.M. 616, 884 P.2d 507 (applying the discovery rule to
the statute of limitations for a personal injury action and observing that “[t]he
limitations period is not tolled simply because a plaintiff does not know the full
extent of [their] injury; the statute begins to run once [they] know[] or should know
sufficient facts to constitute a cause of action”).

26} We will not ignore these lessons from precedent merely because the plaintiff
bringing the medical malpractice claim for personal injury is a patient’s estate after
the patient has died rather than the patient while the patient is alive. A wrongful
death claim is the patient’s personal injury claim transmitted to the personal
representative of the wrongful death estate, and the estate is not freed of established
limitations on the patient’s claim. The WDA is a “survival statute,” meaning the Act
allows “a decedent’s claim [to] survive[] [their] death.” Est. of Krahmer ex rel. Peck
v. Laurel Healthcare Providers, LLC, 2014-NMCA-001, § 6, 315 P.3d 298 (internal
quotation marks and citation omitted). The WDA “does not create a new cause of
action.” /d. J 7. Instead, upon the decedent’s death, the WDA “transmits” the cause
of action that the decedent held during their life to the personal representative, who
pursues “the same cause of action exactly as 1t would have been possessed by the
decedent.” /d. J] 6-7. Importantly, “any limitations on the decedent’s personal right

to maintain an action will survive as well.” /d. § 6. We therefore determine the

accrual date for an estate’s wrongful death claim that is based on allegations of
medical malpractice in exactly the same way that we determine the accrual date for
a patient’s medical malpractice claim.

27 In this case, the malpractice claim accrued on July 12, 2016, when Decedent
discovered the alleged misdiagnoses by the Doctors. After leaving Dr. Keating’s
care, Decedent went to another doctor and was diagnosed with cancer on July 12,
2016, and at that time Decedent should have known that she potentially suffered
malpractice under the care of the Doctors. See Cummings, 1996-NMSC-035, 7¥ 6,
47, 57 (stating that a proper medical diagnosis was objective confirmation alerting a
plaintiff to possible malpractice and holding the accrual date for a misdiagnosis was
the date the patient was properly diagnosed). Because Decedent’s malpractice claims
for personal injury against the Doctors accrued on July 12, 2016, the Estate’s
wrongful death claims accrued on the same date, see Est. of Krahmer, 2014-NMCA-
001, § 6, which was not during the last year of either repose period. We therefore
conclude that the due process exception does not apply, see Cahn, 2018-NMSC-002,
{ 16, and that the district court correctly dismissed the Estate’s wrongful death claim

as untimely under the MMA’s statute of repose.

—

OO NO

IV. A Loss of Consortium Claim Accrues, for Purposes of the Due Process
Exception, When the Claimant Knows or Should Have Known of Their
Injury and its Cause

8} We do not reach the same result for the Family’s loss of consortium claims
because these claims accrued when each member of the Family knew or should have
known of his own injury—the harm to his relationship with Decedent—and of its
cause. The district court erred by concluding that the claims accrued when Decedent
discovered her injury, and that conclusion was not a proper basis for entering
summary judgment against the Family as to the applicability of the due process
exception.

9} The parties disagree about which injury is relevant to the accrual inquiry:

Plaintiffs say the relevant injuries are those to the relationships between the Family

and Decedent, but the Doctors ask us to focus on the injury Decedent suffered

because of the Doctors’ alleged malpractice. We agree with Plaintiffs. A claim
accrues “[o]nce a plaintiff has discovered [their] injury and the cause of that injury,”

Maestas, 2007-NMSC-003, § 22 (emphasis added), and the injury suffered by a loss

of consortium claimant is distinct from the physical injury suffered by the victim of

the underlying tort. A loss of consortium claimant “suffer[s] a direct injury’—
specifically, an injury “to a relational interest with another’—and the claimant “may
seek recovery [for this injury] separately from the underlying tort.” Thompson v. City

of Albuquerque, 2017-NMSC-021, § 16, 397 P.3d 1279. Therefore, a loss of

consortium claim accrues when the loss of consortium claimant discovers their

injury—when they knew or should have known of the injury to the relationship and |
of its cause. |

30} The district court erroneously concluded that such claims accrue when a
patient discovers their injury, and we therefore reverse its order eranting summary
judgment for the Doctors on this basis. Our holding does not preclude the Doctors

from arguing on remand that the Family members learned or should have learned of

10
1]
12

their injuries and the cause of those injuries too early in the repose periods to warrant
application of the due process exception and that the loss of consortium claims are
therefore time-barred.

CONCLUSION

31} We affirm the dismissal of the wrongful death claims, reverse the dismissal

of the loss of consortium claims, and remand for further proceedings consistent with

—
aay

16
17

this opinion.

323} ITISSO ORDERED.

pale

ZACHARY “JIVES, Judge

1
WE CONCUR:
2 3
NIEFR L. ATTREY, Chef Judge
4 5
JANE B. YOZALEM, Judge
23

January 27, 2025- Marc Grano v. Julia Keating, M.D., No. A-1-CA-40770

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